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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

The FBI: Foiling its own plots since 2001

One common defense in counterterrorism cases is entrapment.  One scenario is when law enforcement obtains information from intelligence sources that a person in the U.S. is tied to terrorism.  For example, a person's telephone number might be found in an address book in Afghanistan.  How to tell if the person really is involved in terrorism?  Well, one way is essentially to go up and ask them.  The FBI follows through on the intelligence information by sending someone undercover to ask the person whether they would be interested in funding or otherwise participating in a terrorist act.

A second scenario is when a terrorist cell involves only people of certain specific backgrounds — neighborhood, ethnicity, religion, race, age, etc. — and the only way to learn what the group is doing is to join it (at least until enough probable cause is obtained for electronic surveillance orders).  Lacking agents with the right attributes, the FBI uses an informant with the matching attributes.  (This is hardly unique to terrorism investigations; it is used to investigate gangs and la Cosa Nostra, for example).

Exacerbating the difficulties of both of this situations is the risk of allowing a terrorism plot to proceed too far.  It is easier to prosecute a person after a bombing or killing or some historic event than it is before, but no responsible law enforcement agent will allow a plot to proceed through to the death of innocent civilians.  The goal is prevention. Thus, the FBI (or other law enforcement agency) must control the situation.  If the government controls it, then isn't the plot really just entrapment?  This is an issue we (the class of Law 779) can discuss in a couple of weeks when we move on to investigative techniques.

There are people who view these investigative techniques in a much more sinister light. At, Stephan Salisbury, a cultural writer for the Philadelphia Inquirer, authored The FBI: Foiling its own plots since 2001.  In it, he asserts:

Informers have by now become our first line of defense in our battles with the evildoers, the go-to guys in the never-ending domestic war on terror. They regularly do the dirty work — suggesting and encouraging the plots, laboring as bag men to move the money, fashioning the bombs, and eliciting the flamboyant dialogue, even while following the scripts of their handlers to the letter.  They have attended to all the little details that make for the successful and now familiar arrests, criminal complaints, trials, and (for the most part) convictions in the ever-distracting war against… what? Al-Qaeda? Terror? Muslims? The inept? The poor?

In a fairly comprehensive piece from July 6, 2010, Mr. Salisbury surveys a variety of recent high profile cases and argues that they are, at best, the result of a bad policy.  He also mentions a case from Albany.  Terry Kindlon, one of the defense attorney's who tried the case in Albany, has generously taken the time to speak with our class during two previous terms.  Perhaps we will again invite him to share his experience, expertice and valuable time with us.

Mr. Salisbury's interpretation of events differs from my own, so I encourage you to read his article.  In any event, when raised by the defense, entrapment becomes a specific legal issue for the jury to decide.  And, as we shall see, federal law on entrapment varies greatly from that of some of the states.

[Hat tip to Bruce Schneier at Schneier on Security.]

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